CRIME AND PUNISHMENT: But Was the Cause of Justice Served?

The trial is finally over for the Occupy Nine. As expected, guilty verdicts were declared all around, and prison sentences handed down. The authorities took years to prepare their case and 20 days to argue it in court late last year. Verdicts were announced on April 9, and sentences on April 24.

In the dock were the three original leaders who spent the better part of 2013-14 organizing their Occupy Central civil disobedience campaign. It marked the culmination of Hong Kong’s 30-year agitation for a government elected by universal suffrage. The campaign had begun in the 1980s, initially in hopeful anticipation of a new post-colonial era for Hong Kong after its 1997 return to Chinese rule.

THE ACCUSED: Defendants One, Two, and Three

The three principal defendants were Occupy Central’s founders: University of Hong Kong law professor Benny Tai Yiu-ting, who initiated the idea; Chinese University of Hong Kong sociologist Chan Kin-man; and Baptist minister Chu Yiu-ming. They are referred to throughout the formal court documents by number only, not by name, as D1, D2, and D3. *

Defendants Four through Nine

In the dock with the three founders were six others, selectively chosen because the authorities were able to identify and associate them with specific actions responsible for launching the 79-day street blockades that began on September 28, 2014. The six:

Why only these six were selected is unclear since there were many others who participated in organizing, rehearsing, and launching the civil disobedience campaign. But the six at least formed a neat representative sample of those drawn to the campaign: two are current Legislative Councillors, one a barrister by profession, the other a social worker; two were then university student leaders; the other two are politicians including one older moderate and one younger radical.

INDICTMENTS

The charges entailed variations on the theme of incitement to cause a public nuisance. This indeterminate charge has fallen by the wayside in other common law jurisdictions, giving way to specific laws defining specific crimes. But in post-colonial Hong Kong, the old way remains on the books, waiting for opportunities to be dusted off and used in the service of its 21st century one-country, two-systems status under Chinese mainland rule.

The three leaders were charged on multiple grounds, namely, conspiracy to cause a public nuisance, plus inciting others to cause a public nuisance, plus inciting people to incite others to cause a public nuisance. In other words, the three joined together … thereby conspiring … to organize a protest campaign, which included mobilizing members of the public to participate, and encouraging them to similarly mobilize others to join in as well. Each count carries a maximum sentence of seven years imprisonment.

In pre-trial reviews, defence lawyers challenged the old-fashioned public nuisance charge. They also protested that the double incitement charges were intended to multiply punishments for the accused. The defendants had initially been given to understand they would be charged with the lesser crime of unlawful assembly. But presiding Judge Johnny Chan Jong-herng ruled otherwise on all complaints (Hong Kong Free Press, Jan. 9, 2018; South China Morning Post, Feb. 13, 2018).

By the time of the final April 9, 2019 judgement, his clerks had been able to locate a public nuisance case in Britain as late as 2006. He also explained that the double incitement charge entailed two separate crimes … as when the accused gave speeches enjoining listeners to tell their friends to come out as well, the better to pack the streets with as many people as possible (Judgement, April 9, 2019, paragraphs 62-63, 75-83). *

Conspiracy was not included on the charge sheets for the other six defendants. Tanya Chan, for example, was accused only of the double incitement charge: inciting people and then inciting them to incite others. She was accused of having been present at the main protest site on the night of September 27, 2014. There she echoed Benny Tai’s remark that the occupation had begun and urged her listeners not just to join in themselves. She encouraged them to ask others to join as well (Judgement, paras 429-444, 528-540).

Videos and recordings were used as proof that other defendants similarly exhorted listeners gathered at or near the main protest site on September 27/28, to mobilize others in an effort to break through police barriers and fill the surrounding streets. The main protest site was next to Hong Kong’s central government offices on Tin Mei Avenue at the junction with Harcourt Road, a major Hong Kong Island thoroughfare.

OCCUPY ON TRIAL
The court heard something about the origin of the movement during questioning by lawyers for the prosecution and defence. Prof. Chan served as the chief defence witness. ** The other eight defendants chose not to speak at this stage. All pleaded “not guilty” to all charges.

Tai envisaged a short sit-in lasting only a few days but with people … hopefully as many as 10,000 … blocking streets in Hong Kong’s central business district. The sit-in was seen only as a last resort, however, if all else failed to achieve the goal of “genuine” universal suffrage elections.

All else would include extensive public consultations, discussion, and debates. If after all that, authorities still refused to allow the long-promised universal suffrage elections, only then would the final street occupation take place. But the emphasis throughout was on non-violent peaceful, civil disobedience … so much so that the founders named their campaign Occupy Central with Love and Peace.

The idea was to make a strong statement with a dual purpose: (1) raise public awareness, inspire Hong Kongers to understand the need and join the campaign for genuine universal suffrage elections, which colonial Hong Kong had never allowed; and (2) alert the powers that be … government leaders here and in Beijing … to the demonstrated popular demand.

Occupy Central was actually only one addition to the campaign for electoral reform that had been growing in response to specific promises made by Beijing and written into Hong Kong’s new Basic Law constitution. It suggests (Annex One) that more progress toward democratic elections might take place beginning ten years after the 1997 return to Chinese rule, which served as the timetable.

Tai’s Occupy Central project unfolded concurrently with the government’s own public consultation exercise. This drew a widespread response with seemingly everyone who had an opinion getting into the act and submitting ideas to the government for consideration.

Hong Kong’s current Chief Executive Carrie Lam was then Number Two in the Hong Kong government and responsible for managing the public consultation exercise. The specific goal, according to the timetable Beijing had laid down, was to reform electoral procedures for the coming 2017 Chief Executiveelection, with preparatory work also anticipated for the 2016 Legislative Council election in anticipation of a full universal suffrage LegCo election in 2020. The 2017 date would coincide with the 20th anniversary of Hong Kong’s return to Chinese rule.

Once Chan and Chu joined Tai, detailed planning began for their project. The court heard about the four-step procedure they designed and followed: Deliberation, Authorization, Negotiation, and finally Occupation … if necessary.

In fact, the first three stages did proceed as planned. DELIBERATION occurred during the course of three separate Deliberation Days. Interested members of the public could join in group discussions about all aspects of the subject at hand. Organizers said some 3,000 people attended these gatherings. During the last, in May 2014, participants were asked to choose from among several proposals for nominating Chief Executive election candidates since nomination had become the central focus of debate.

The AUTHORIZATION stage sought to involve the public at large. This was done via a self-administered mock referendum with technical skills and equipment provided. at cost, by the University of Hong Kong’s Public Opinion Program. All interested Hong Kong identify card holders were invited to vote either on-line or in person at a few sites with computer terminals set up around town. Some 800,000 people participated in this June 20-29 exercise.

Much debate and argument ensued between older moderates and younger activists. The thrust of the campaign, however, was to allow some form of civic or popular participation in the nominating process. This emerged in opposition to Beijing’s on-going suggestions for candidates pre-selected by Beijing. But the sense of the Occupy Central campaign, as determined by the June 20-29 mock referendum, was in favour of some form of civil nomination (June 24, 2014 post), and confirmed by a huge angry protest march on July First (July 7, 2014 post).

With public authorization having thus concluded, the next step was NEGOTIATION, which must go forward with the public’s civic nomination preference. But despite so much noise. the project was still on course … until August 31, when Benny Tai received a shock. That was the day Beijing issued its response to the sense of the public demand for some form of civic nomination.

Beijing ignored everyone’s variations on the theme of civic nomination, including even the most moderate, by mandating the form of election that officials had been advertising for months … but without saying the decision had already been made in Beijing in favour of a mainland-style election with candidates approved by Beijing.

The public had responded to the Hong Kong government’s call for consultations and Benny Tai’s campaigning, all in good faith, thinking it was to be their election and they would have a say …. only to discover one of Beijing’s more disingenuous deceptions.

It was this shock that provoked Benny Tai to shock everyone else with his declaration to Bloomberg News that he had “failed,” which indeed he had by the standards set (SCMP, Sept. 2, 2014). His four stages were based on the optimistic hope that the popular consciousness-raising campaign would convince government decision-makers to design a genuinely democratic system. This would make his final civil disobedience phase unnecessary. But Beijing’s 8.31 Decision meant the OCCUPATION phase must now proceed.

Word began circulating about Benny Tai losing his nerve, not wanting to go through with the final Occupation stage. And perhaps it wouldn’t have happened had college students not stepped in and forced the issue by calling a classroom protest strike to take place during the final week of September.

Occupy leaders then finally decided on October First as the day for Occupy to begin. They chose a public holiday, Chinese National Day, with the aim of minimizing traffic disruption downtown. But by then the momentum of their campaign had overtaken them.

Incidents occurred as the student strike was ending. Student activist Joshua Wong was among those arrested for storming the gate at government headquarters on Tin Mei Avenue. And that was why crowds began gathering there, on September 27, to demonstrate support for the students.

That was how Benny Tai and Tanya Chan and the others found themselves there, on the stage with the green backdrop that the students had set up for their week-long class- boycott lectures and rallies. The stage became an impromptu rallying point and the setting for much of the courtroom evidence that was used to convict Tai and the others.

But the starting point for Occupy was not on October First at the planned site downtown. Instead, the occupation began many blocks away after police fired volleys of teargas into the gathering crowds on September 28. It was a vain attempt to clear the Tin Mei Avenue – Harcourt Road intersection and those in the direct line of fire had only their umbrellas for protection.

Tai’s original Occupy Central campaign then acquired a new name and a different mode of operation, as it morphed into the Umbrella Movement, with street blockades that sprang up spontaneously and then stayed put, disrupting major traffic arteries in districts throughout the city for 79 days.

SUMMATION FROM THE DOCK

The defendants all pleaded “not guilty,” and except for Prof. Chan, chose not to give evidence during the trial. He spoke for all and his testimony was matter-of-fact throughout. But by the end, Benny Tai could keep his peace no longer and on December 12 delivered a rousing 30-minute “closing submission” for the defence. ***

He spoke first and foremost about non-violent civil disobedience. Although contrary to specific laws, such acts, he said, had come to be widely recognized as a just means of protesting and demanding redress for government laws and policies that are themselves seen as being unjust.

He cited American Civil Rights leader Martin Luther King Jr., on his rationale for resisting racial discrimination laws in the United States, namely, to arouse the conscience of the wider community over the injustice. King’s rationale included a willing acceptance of the penalties including imprisonment, which Tai similarly accepted for himself.

His cause is a belief that “only through the introduction of genuine universal suffrage could a door be opened to resolving the dep-seated conflicts in Hong Kong.” He cited Hong Kong’s Basic Law constitution, which includes such a promise and the International Covenant on Civil and Political Rights that does as well. Yet, Beijing’s interventions since 2004 had gradually eroded these promises. Occupy Central’s resort to civil disobedience was only intended to arouse concern over this erosion … over the fact that the “Chinese Government had unjustly broken its constitutional promise and breached its constitutional obligation.”

Tai invoked the right to freedom of speech and peaceful demonstration as further justification. Additionally, he cited the legal conventions of restraint that had evolved in judging civil disobediences cases. This he did by way of challenging the multiple conspiracy, public nuisance, and incitement charges leveled against the Occupy Nine.

JUDGEMENT: A VIEW FROM THE BENCH

In conclusion, Judge Chan made a point of noting that he had considered all the arguments, before dispensing with all of them. * He considered civil disobedience and its conventions of proportionality, restraint, and sincerity. But he declared that “civil disobedience is not a defense in law.” His job was not to judge the merits of the defendants’ political views but the nature of the offenses they had committed. Public nuisance could mean a wide variety of disruptive acts that create inconvenience for the public, which this one surely did.

He dismissed as “naïve” the notion that if thousands of people sat out on the street, the government would accept “the form of universal suffrage advocated by the Trio,” just like that, “overnight,” with a snap of the fingers (para 276). . He also dismissed the suggestion that just because mass protests had succeeded in shelving the national political education curriculum in 2012, so the Occupy Central campaign had reason to expect a similar result (para 277)..

But he neglected to consider the other larger precedent: the Hong Kong government had also shelved the even more contentious Article 23 national security legislation … just because tens of thousands of angry people had marched against it on July 1, 2003.

He also seemed not to have familiarized himself with the 30-year history of Hong Kong’s electoral reform movement, or with the specifics of the campaigning that had developed by 2013-14. In any case, he failed to consider the variety of moderate nomination proposals that had been presented by the public during the 2013-14 city-wide debates, including those featured in the mock referendum sponsored by Occupy.

Any one of the proposals would have been preferable to Beijing’s 8.31 Decision with its insistence on mainland-style party-vetted election candidates. Those other alternatives provided ample opportunity for the authorities to defuse public anger and seek an intermediate solution.

Judge Chan also felt the charges did not constitute a disproportionate restriction on the fundamental rights of free speech, peaceful assembly, and so on. And Judge Chan’s verdicts matched his reasoning.

Verdicts

The Occupy trio: all guilty of conspiracy to commit a public nuisance given their decision to launch the sit-in downtown on October First. They then wanted to “ride the tide” and take advantage of the crowds gathering elsewhere on September 27/28, urging them to pack the streets around government headquarters instead.

Turning to the incitement charges, most of the defendants were judged to be guilty either of inciting, or inciting to incite … all countervailing defence arguments to the contrary notwithstanding.

In a summary of his judgement issued ahead of sentencing on April 24, Judge Chan repeated his conclusions. The street demonstrations had resulted in an unreasonable obstruction. Occupy leaders had therefore forfeited the legal protections ordinarily accorded peaceful demonstrations. He asserted, without offering any evidence, that the charges would not have a chilling effect and silence legitimate dissent, as critics were contending (sentencing summary: DCCC 480/2017).

The judge acknowledged that Occupy was a peaceful protest and did not derive from any nefarious motives. But the defendants had shown no remorse, as is customary here when those just convicted make their mitigation pleas ahead of sentencing. Quite the contrary.

Reverend Chu and the others finally spoke after the verdict was announced on April 9. Far from apologizing, as Judge Chan said the public had a right to expect, the defendants addressed the court to say they were honoured to have been participants in such a movement. Speaking for the three leaders, Rev. Chu also said they have no regrets and would never give up the struggle (HKFP, April 9). Later he corrected the judge to say they had indeed apologized for the disruption during the occupation itself (Standard, April 26; also, Apple, Apr. 26).

Sentences

Consequently, Judge Chan felt custodial sentences must be imposed. Receiving the stiffest punishment were the three founders, each given prison terms amounting to two years. That of the eldest, Reverend Chu, was suspended in deference to his age and ill-health. The sentences were imposed on two separate counts amounting to a total of 24 months but can be served concurrently, meaning the amount of time Tai and Chan must each spend behind bars is 16 months, to begin immediately.

Also imprisoned, for eight months, were Legislative Councillor Shiu Ka-chun and the League of Social Democrats’ Raphael Wong. Tanya Chan’s sentencing was delayed for medical reasons. Retired politician Lee Wing-tat received a suspended jail sentence.

As they were preparing to board the prison van, Prof. Chan addressed a point in the judge’s April 9th ruling. He had called them “naïve” to think universal suffrage could be achieved just like that, with a snap of the fingers, by sitting on the street. Chan said if they had been naïve it was to believe in the promise of “one-country, two-systems.”

In fact, it was his generation … now middle-aged and older, like Tai, Chan, and Chu … that had taken seriously the promises Beijing wrote into Hong Kong’s new constitution for use after 1997, based on the new one-country, two-systems governing formula.. The younger generation has learned from their elders’ mistakes, which is why the new localist ideas and calls for independence are coming from that quarter to shatter the old coalition of pro-democracy partisans.

In anticipation of the guilty verdicts, there has been much talk about appeals. But that route will take years. For now, Professors Tai and Chan are no doubt planning new research projects … about life behind bars, and the irony of a judicial system that proclaims its independence while organizing trials that are programmed to convict with made-to-measure charges and a judge intent on getting the job done. They might well conclude that not only did they inaugurate Hong Kong’s first major civil disobedience campaign. They were also the lead players in Hong Kong’s first real “show trial,” elaborately staged for the purpose of keeping up appearances under one-country, two-systems rule.